was the Synod under Arch-Bishop Dunstan called The National Synods were diversly called sometimes by the Pope sometimes by the King as the first moving occasion concerned either of them For Pope Agatho in a Synod at Rome ordered that a Synod should be called in Saxony viz. England Sacrosancta authoritate nostra Synodali unitate and many Legatine Synods in succeeding times demonstrate the same That the Saxon Kings also called them upon occasion is obvious through all the Councils and needless to instance amongst so many particulars The Provincial Synods were sometimes convocated by the King and sometimes by the Arch-bishop and sometimes joyntly The Diocesan were called by the Bishop In the National and Provincial sometimes Kings moderated alone sometimes the Arch-bishop alone and sometimes they joyned together The Assistants were others both of the Clergy and Laity of several Ranks or Degrees and it seemeth that Women were not wholly excluded for in a Synod under Withered King of Kent Abbatisses were present and attested the acts of that Synod together with others of the Clergy of greater degree The matters in action were either the making or executing of Laws for Government and because few Laws passed that did not some way reflect upon the King and people as well as the Clergy the King was for the most part present and always the Lords and others Yet if the matters concerned the Church in the first act the King though present the Arch-bishop was nevertheless President as it besel at a Synod at Clevershoe An. 747. and another at Celchith An. 816. And in the Reign of Edward the Elder though the Synod was called by the King yet the Arch-bishop was President Concerning all which it may be in the sum well conceived that in the penning of the Councils aforesaid either the Clergy being Pen-men were partial or negligent in the setting down of the right form and that the Kings called these Assemblies by instance of the Archbishop and sometime presided in his own person and sometimes deputed the Archbishop thereunto The executing of Laws was for the most part left to the Diocesan Synods yet when the cases concerned great men the more general Councils had the cognizance and therein proceeded strictly sparing no persons of what degree soever Examples we find hereof amongst others of one incestuous Lord and two delinquent Kings Edwy and Edgar Nay they spared not the whole Kingdom for in the quarrel between Cenulphus the King and Archbishop Wilfrid the whole Kingdom was under interdict for six years space and no Baptism administred all that time Nor were they very nice in medling with matters beyond their sphere even with matters of Property for at a Provincial Council for so it is called they bore all down before them even the King himself as in the case between Cenulphus the King and the Archbishop of Canterbury concerning the Monastery of Cotham The like also of another Synod concerning the Monastery of Westburgh It 's true the Lords were present and it may be said that what was done was done in their right yet the Clergy had the rule and begat the Child and the Lay-Lords onely might challenge right to the name This concurrence of the Laity with the Clergy contracted much business and by that means a customary power which once rooted the Clergy after they saw their time though not without difficulty turned both King and Lords out and shut the doors after them and so possessed themselves of the whole by Survivorship But of this hereafter The particular Diocesan Synods were as I said called by the Bishops within their several Diocesses The work therein was to preach the Word as a preparative then to visit and enquire of the manners of the Clergy in the worship of God and of all matters of scandal and them to correct These Synods were to be holden twice every year at certain times and if they met with any matter too hard for them to reform they referred it to the Provincial or National Synod CHAP. XIV Of Causes Ecclesiastical AS the power of Synods grew by degrees so did also their work both which did mutually breed and feed each other Their work consisted in the reforming and setling matters of Doctrine and Practice The first was the most ancient and which first occasioned the use of Synods In this Island the Pelagian Heresie brought in the first precedent of Synods that we have extant and herein it will admit of no denial but in the infancy of the Church the Teachers are the principal Judges of the nature of Errour and Heresie as also of the truth as the Church is the best guide to every Christian in his first instruction in the principles but after some growth there is that in every Church and Christian that makes itself party in judging of truth and errour joyntly with the first Teachers And therefore 't is not without reason that in that first Synod although Germanus was called Judex yet the people hath the name of Arbiter and 't is said that they did contestare judicium Blasphemy was questionless under Church-censure but I find no footsteps of any particular Law against it yet in Scotland a Law was made to punish it with cutting out the Tongue of the Delinquent But it may be feared that neither the Saxons nor their Roman Teachers were so zealous for the honour of Gods Name as to regard that odious sin unless we should account them so holy as that they were not tainted therewith and so needed no Law. But Apostacy was an early sin and soon provided against the Church-censure was allowed of in Britain before the Saxons Church had any breath Afterward it was punished by Fine and Imprisonment by a Law made by Alfred as he provided in like manner for other Church Laws The times anciently were not so zealous for due observance of Divine Worship unless by the Church-men who were the Leaders therein a foreign Canon was made to enforce that Duty long before but it would not down with the rude Saxons they or the greater sort of them were content to come to Church onely to pray and hear the Word and so went away This is noted by that ancient Writer in nature of an imputation as if somewhat else was to be done which they neglected this somewhat was the Mass which in those days was wont to be acted after the Sermon ended And it 's probable that if the Nobles were so ill trained up the inferiour sort was worse and yet find we no Law to constrain their diligence or to speak more plainly it 's very likely the Saxons were so resolute in their Worship as there was either little need of Law to retain them or little use of Law to reclaim them For it 's observed in their late Psalter that the Roman Clergy was not more forward to Image or Saint-worship
to speed for the present and left the future to look to it self Ireland was nigh but we find nothing concerning their interest in shipping the French Coasts were not their own men being yet within the Roman Line and none were at liberty but such as were never subdued by the Romans only the Saxons are in the thoughts of the Britons a mighty people not far off able to mate the Romans in their chiefest pride and though in a manner Borderers upon the Roman world yet unsubdued by them used to the Wars mighty at Sea and now given over by the Romans in a plain field were at leisure and so well knew the way to Britain that the Romans intituled the Coasts of Norfolk and Suffolk the Saxons Coasts from the many visits that the Saxons had already made into those parts full sore against the Romans wills I hold it both needless and fruitless to enter into the Lists concerning the original of the Saxons whether they were Natives from the Northern parts of Germany or the Reliques of the Macedonian Army under Alexander But it seems their Government about the time of Tiberius was in the general so suitable to the Grecians as if not by the Reliques of Alexanders Army which is generally agreed emptied it self into the North yet by the Neighbourhood of Greece unto these Nations it cannot be imagined but much of the Grecian wisdom was derived into those parts long before the Romans glory was mounted up to the full pitch and because this wisdom could never be thus imported but in vessels of mans flesh rigged according to the Grecian guize it may be well supposed that there is some consanguinity between the Saxons and the Grecians although the degrees be not known The people were a free people governed by Laws and those made not after the manner of the Gauls as Caesar noteth by the great men but by the people and therefore called a free-people because they are a Law to themselves and this was a priviledge belonging to all the Germans as Tacitus observeth in cases of most publick consequence de majoribus omnes like unto the manner both of the Athenians and Lacedemonians in their Concio For which cause also I take the Gauls to be strangers in Blood unto the Britons however nigh they were in habitation That some matters of action especially concerning the publick safety were by that general vote concluded and ordered seems probably by their manner of meeting with their weapons But such matters as were of less concernment the Councel of Lords determined de minoribus Principes saith the same Author Their Country they divided into Counties or Circuits all under the government of twelve Lords like the Athenian territory under the Archontes These with the other Princes had the judicial power of distributive justice commited to them together with one hundred of the Commons out of each division The Election of these Princes with their Commission was concluded inter majora by the general Assembly and they executed their Commission in Circuits like unto the Athenian Heliastick or Subdial Court which was rural and for the most part kept in the open aire In brief their judicial proceedings were very suitable to the Athenian but their military more like the Lacedomonian whom above all others in their manners they most resembled In their Religion they were very devout saving that they much rested in the reverence they bare to their Priests whom they made the moderator of their general Assembly their Judge Advocate and Executioner in Martial Law therein submitting to them as unto Gods instrument They worship an invisible and an infinite Diety mans flesh is their Sacrifice of highest account and as often as they make inquiry by lots they do it with that solemn reverence as may put all the Christian world to the blush precatus Deos caelumque suspiciens and this done by the Priest of the Town if it be in publick causes or otherwise if private then by the master of the Family so as they had Family-worship as well as publick These things I note that it may appear how nigh these invited guests resemble the old Religion of the Britons and how probable it is that this Island hath from time to time been no other than as a Sewer to empty the superfluity of the German Nations and how the influence of these old principles doth work in the fundamental government of this Kingdom to this present day These are the instruments chosen by God and called by the Britons to be their deliverers from their Enemies which they did indeed yet not swayed thereto by love of Justice or compassion for if writers say true they were no better than high-way-men both by Sea and Land but by their love of spoil and prey and by the displeasure of God against a dissolute people They profess friendship nevertheless in their first entrance but espying the weakness of the Britons and feeling the strength of the Picts and finding the Land large and good they soon pickt quarrels with their Hoast made peace with the Picts and of fained Friends becoming unfained Foes to the Britons scattered a poor remnant of Christians some to the furthest corners of the Kingdom others into forrain Nations like so many Seeds men to sow the precious Seed of Life in a savage soil And those few that remained behind profiting under much misery by their doctrine and good example yielded better blessings unto their new-come guests than they either expected or desired And thus the miseries of poor Britain became riches of mercy to the North and Eastern people and the ruines here the foundations of many famous Churches else-where Nor yet was mercy from the Britons utterly taken away nor their blood drawn out to the last drop or their name quite blotted out of the book of fame for whereas two things make men miserable viz. the heaviness of the burden without and the failing of the heart within and Gods ordinary way of redress of the former beginneth in taking away the latter thus dealt he with the Britons For in danger as want of strength breeds fear and that by extremity despair so despair oftentimes revives into a kind of rage that puts strength forth beyond reason I say beyond reason for cause cannot not be given thereof other than Gods extraordinary dispensation in a judiciary way when he seeth the stronger to wax insolent over the weaker Thus the Britons fled from the Picts so long as they had any hope of relief from the Saxons but being become their Enemies and pursuing them to the low-water mark that in all reason they must either drink or bleed their last then their courage revived and by divers Victories by the space of 200 years God stopped the hasty Conquest of the Saxons The result whereof by truces leagues commerce conversation and marriages between these two Nations declared plainly that it was too late
than the people were backward thereto and therein shewed themselves the true Seed of their Ancestors in Germany of whom it 's observed that they endured not Images but worshipped a Deity which they saw sola reverentia Sorcery and Witchcraft they had in abomination yet it was a sin always in a mist and hard to be discerned but by the quick-sighted Clergy and therefore it was left to their censure as a sin against the Worship of God. This Ethebald the Mercian King first endowed them with and they alone exercised the Cognizance thereof till Alfred's time who inflicted thereupon the penalty of Banishment but if any were killed by inchantment the delinquent suffered death by a Law made by Aethelstan And thus by degrees became one and the same Crime punishable in several Jurisdictions in several respects Concerning Perjury the Prelates had much to do therewith in future times and they had the first hint from Ina the Saxon King 's Grant to them of power to take Testimonies upon Oath as supposing that the Reverence that men might bear to their Persons and Functions would the rather over-awe their Tongues in witnessing that they would not dare to falsifie lest these knowing men should espy it and forthwith give them their doom But no positive Law allowed them that power of sentence till Aethelstan's Law gave it and upon conviction by the same Law distested the delinquents Oath for ever Sacriledge comes in the next place being a particular Crime meerly of the Clergy-mens invention and naming for before they baptized it you might have well enough called it Theft Oppression or Extortion This Crime the Prelates held under their Cognizance by vertue of that general Maxime That all wrong done to the Church must be judged by the Church The first time that I can observe they challenged this power was by Egbert Archbishop of York in the Seventh Century But nothing was more their own than Simony and that may be the reason why we find so little thereof either for the discovery or correcting of it All former Crimes were in their first act destructive to the Church but this advantageous and therefore though the Canons roar loud yet the execution is not mortal because it 's bent against the dignity and not the gain And although the Canon would not that any Presbyter should be made but presented therewith to some place to exercise his Function in yet it serveth not for those times when men were sent forth rather to make Flocks than to feed Flocks And yet the Theam of Marriage was the best Dish in all their Entertainment They had the whole common place thereof with the Appurtenances within the compass of their Text before ever it attained the honour of a Sacrament It was a branch of Moses Law whereof they were the sole Expositors and so seemeth to be cast upon them by a kind of necessity as an Orphan that had no owner Nevertheless a passage in Eusebius seemeth to report this Trust in the Civil Magistrate for he relateth out of Justin Martyr concerning a Divorce sued out by a godly Matron long before the Prelacie got into the Saddle or the Clergie had the power of Judicature And whereas Lucius taxed Vrbicius the Magistrate for punishing Ptolomy who was guilty of no Crime worthy of his cognizance in that kind amongst other Crimes enumerated by him whereof Ptolomy was not guilty he nameth the Crimes against the Seventh Commandment intimating thereby a power in the Judge to have cognizance of those Crimes as well as others But the Prelacie beginning to mount nibled at it in the second Centurie but more cleerly in the fourth when the persecutions were allayed and men of Learning began to feel their Honour and never left pursuit till they had swallowed the Bait and exercised not onely a Judiciary power in determining all Doubts and Controversies concerning the same but challenged an Efficienciary power in the Marriage-making This Garland Austin brought over with him and crowned the Saxon Clergie therewith as may appear by his Queries to Pope Gregory And thus the Saxons that formerly wedded themselves became hereafter wedded by the Clergie Yet the Civil Magistrate retained a supream Legislative power concerning it as the joynt Marriages between the Saxons Britons and Picts do manifest For it 's said of that Work that it was effected per commune concilium assensum omnium Episcoporum procerum comitum omnium sapientum seniorum populorum totius regni per praeceptum Regis Inae and in the time of Edward their King were enacted Laws or Rules concerning Marriage and so unto the Lay-power was the Ecclesiastical adjoyned in this Work. The Clergie having gained the Principal with more ease obtained the Appurthenances such as Bastardy Adultery Fornication and Incest There was some doubt concerning Bastardy because it trenched far into the Title of Inheritance and so they attained that sub modo as afterward will appear The Laws of Alfred and Edward the elder allowed them the cognizance of Incest although nevertheless the Civil Magistrate retained also the cognizance thereof so far as concerned the penalty of the Temporal Law. Adultery and Fornication they held without controul yet in the same manner as the former for the Civil Magistrate had cognizance thereof so far as touched the Temporal penalty And to give them as much as can be allowed it 's probable that in all or most of the Cases foregoing they had the honour to advise in determining of the Crime and declaring the Law or defining the matter for in those ignorant times it could not be expected from any other But how the cognizance of Tythes crept under their wing might be much more wondred at for that it was originally from the Grant of the People nor can a better ground be found by me than this that it was a matter of late original For till the Seventh Century the times were troublesome and no setled maintenance could be expected for the Ministry where men were not in some certainty of their daily Bread. And as it will hardly be demonstrated that this Title was ever in any positive National Law before the time of Charlemain in whose time by a Synod of Clergie and Laitie it was decreed that Tythes should be gathered by selected persons to pay the Bishops and Presbyters So neither can I find any Saxon National Constitution to settle this duty till Alfred's time although the Church-men had them as a voluntary Gift so far as touched the quota pars for the space of well-nigh a hundred years before But Alfred made a National Law under a penalty to enforce this Duty which the Canon could not wring from the Saxons how dreadful soever the Censure proved And by this means the Church had their remedy by Ecclesiastical censure for the matter in fact and
the Kings hand against the Subjects a snare to the Kingdom and had not the Wittagenmote in their meeting allayed those distempers the Saxon-government had been little other than a Commonwealth reversed CHAP. XXII Of the manner of the Saxons Government in time of War. AS the condition of States or Kingdoms are diversly considered in War and Peace so also must their Government be For however War in it self be but a feaverish Distemper in a Commonwealth yet in some cases it is as necessary as a kindly Ague in due season is for the preservation of the Body which many times takes distemper rather from the excellency of its constitution than from the abundance of humours Nor did the temper of the Saxon Commonwealth ever shine more than in War while it set a Law upon that which ordinarily is master of all mis-rule and confusion and so fought by rule rather than by passion Their Chief in the first times was chosen by the Freemen in the Field either at the Wittagenmote or the Folkmote according to the extent of his command being carried upon a Shield born upon their shoulders like as now Knights of the Shire are This Emblem they entertained him with to declare their trust in him and the work that was expected from him His first title was Heretock afterwards he was called Duke or Dux the latter whereof turned to a bare Title in the conclusion but the former maintained its own honour so long as the name lasted After his election all sware to be at his order and not to forsake him This was a trick of imbased times for though the Lacedemonian Law was positive that none should flie or break his Rank but get the Victory or die yet were they neither bound by Oath or Penalty shame in those times being accounted worse than death by those brave minds But times growing more old grew also more base-spirited and men could not be drawn into the field holden in Rank by Oaths or Honour and this occasioned that Law of Ina the Saxon King that in such case a Country-Gentleman should be fined One hundred and twenty shillings if he were landed but if otherwise Sixty shillings and the Yeoman Thirty shillings and afterwards the penalty was increased to the forfeiture of all the estate of the Delinquent In their Wars they went forth by bodies collectively as they were united by the law of pledges this made them stick close together for the honour of their Families and Friends and rendered their encounters mortal and to the worsted party commonly fatal for once beaten in the field they could hardly recover either by rallying or gathering a new Army Probable it is that the Lords might have their Villains to follow them in the Battle but the strength consisted of the Freemen and though many were bound by tenure to follow their Lords to the Wars and many were Voluntiers yet it seems all were bound upon call under peril of Fine and were bound to keep Arms for the preservation of the Kingdom their Lords and their own persons and these they might neither pawn nor sell but leave them to descend to their Heirs and in default of them to their Lord and in default of him to their chief pledge and for want of such to the King. They mustered their Arms once every year both in Towns and Hundreds viz. the morrow after Candlemas and such whose bodies were unfit for service were to find sufficient men for service in their stead They were strict in their Discipline if they followed their rule which was made not by the arbitry of the General but by Parliament These amongst other scattered principles concerning Sea-affairs may serve to let us know that the Law-martial and that of the Sea were branches of the positive Laws of the Kingdom setled by the general Vote in the Wittagenmote and not left to the will of a lawless General or Commander so tender and uniform were those times both in their Laws and Liberties CHAP. XXIII Of the Government of the Saxon Kingdom in times of peace and first of the division of the Kingdom into Shires and their Officers IF the Saxon Government was regular in time of War how much rather in time of peace All great works are done by parcels and degrees and it was the Saxons ancient way in Germany to divide their Territory into several Circuits or Circles and to assign to each their several Magistrates all of them ruled by one Law like one soul working in several Members to one common good Thus they did here in England having found the Land already divided into several parts called Comitatus or Counties from the word Comes that signifies a Companion and the Counties thence called are nothing but Societies or Associations in publick charge and service But the Saxon word is Shire or Share that is a portion or precinct of ground belonging to this or that person or great Town and bearing the name of that person or Town and sometimes of the scituation of the people as North or South folk East or South Sex or Saxons This division by the names seems to be of Saxon original and though by the testimony of Ingulfus and other Writers it might seem to be done by Alfred yet it will appear to be more ancient if the Reader mind the grant of Peter-pence made by King Offa wherein is recorded the several Diocesses and Shires out of which that grant was made under the very same names that they own at this day and that was more ancient than Alfreds time by the space of eighty years Each of these Shires or Counties had their two chief Governours for distributive justice of these the Sheriff was more ancient and worthy Officer being the Lieutenant and aided by the power of the County in certain cases for his Commission extended not to leavy War but to maintain Justice in that County and within the same and in this work he was partly ministerial and partly judicial in the one he was the Kings Servant to execute his Writs in the other he regulated the Courts of Justice under his Survey He was chosen in the County-Court called the Folkmote by the Votes of the Freeholders and as the King himself and the Heretock were intituled to their honour by the peoples favour The Coroner though in original later was nevertheless very ancient he was the more Servant or Officer to the King of the two His work was to enquire upon view of Manslaughter and by Indictment of all Felonies as done contra Coronam which formerly were only contra Pacem and triable only by appeal And also he was to enquire of all Escheats and Forfeitures and them to seize He was also to receive appeals of Felonies and to keep the rolls of the Crown-pleas within the County It 's evident he was an Officer in Alfreds time for that King put a Judge to death for
controul for when displeasure was like to ensue he could speak fair and feast and if need was kiss away all discontent Towards his end as stale drink he grew sowr For as in the first part of his Reign he had been supplied by good-will against Law so in his latter times he had gotten a trick of supply by Law against good-will This was by penal Laws which are a remedy if they be used Ad terrorem but if strained beyond that the Remedy proveth worse than the Disease In their first institution they are forms of courtesie from the people to the King but in the rigorous execution of them are trials of mastery of the King over the people and are usually laid up against days of reckoning between the Prince and them Those penal Laws are best contrived that with the greatest terrour to the Delinquent bring the least profit to the King's Coffers Once for all this King's Acts were many his Enterprizes more but seldom attaining that end which they faced He was a man of War and did more by his Fame than his Sword was no sooner resolved in good earnest but he died left a Kingdom unassured his Children young and many friends in shew but in truth very few Now if ever was the Kingdom in a Trance Edward the Fourth left a Son the Prima materia of a King and who lived long enough to be enrolled amongst English Kings yet served the place no further than to be an occasion to fill up the measure of the wickedness of the Duke of Gloucester and a monument of Gods displeasure against the House of Edward the Fourth whether for that breach of Oath or treachery against Henry the Sixth or for what other cause I cannot tell But at the best this Prince was in relation to his Uncle the Duke of Gloucester little other than as an Overseer to an Executor that might see and complain but cannot amend For the Duke ruled over-ruled and mis-ruled all under the name of Edward the Fifth and left no monument of good Government upon record till he changed both the Name and Person of Edward the Fifth to Richard the Third his Fame had lifted him up and might have supported him had he regarded it But as no man had more honour before he ascended the Throne so no man ever entred and sate thereon with less His proceedings were from a Protector to an Vsurper and thence to a Tyrant a Scourge to the whole Nation especially the Nobility and lastly an instrument of Gods Revenge upon himself a man made up of Clay and Blood living not loved and dying unlamented The manner of his Government was strained having once won the Saddle he is loth to be cast knowing himself guilty all over and that nothing could absolve his Fame but a Parliament he calls it courts it and where his Wit could not reach to apologize he makes whole by recompence takes away Benevolences he is ready to let them have their present desires what can they have more He promiseth good behaviour for the future which he might the better do because he had already attained his ends Thus in one Parliament for he could hold no more he gave such content as even to wonderment he could assoon find an Army in the field to fight for him as the most meritorious of his Predecessors Hiâ— ill Title made him very jealous and thereby taught his best Friends to keep at a distance after which time few escaped that came within his reach and so he served God's Judgement against his adjutants though he understood it not Amongst the rest against the Duke of Buckingham his great Associate both in the Butchery of the two young Princes and usurpation of the Royal Scepter He lived till he had laid the Foundation of better times in the person of Henry the Seventh and then received his reward But an ill Conscience must be continually fed or it will eat up its own womb The Kings mind being delivered from fear of the Sons of Edward the Fourth now dead torments himself with thoughts of his Daughter alive ashamed he is of Butchery of a Girl he chuseth a conceit of Bastardizing the Children of Elizabeth Gray that calleth her self Queen of England but this proved too hard to concoct Soon after that he goes a contrary way The Lady Elizabeth Gray is now undoubted Wife of Edward the Fourth and her eldest Daughter as undoubted Heir to the Crown And so the King will now be contented to adventure himself into an incestuous Marriage with her if his own Queen were not in the way onely to secure the Peace of the Kingdom which he good King was bound in Conscience to maintain though with the peril of his own Soul and in this zeal of Conscience his Queen soon went out of the way and so Love is made to the young Lady But Henry Earl of Richmond was there before and the Lady warily declined the choice till the golden Apple was won which was not long after accomplished the King losing both the Lady his Crown and own Life together put an end to much wickedness and had the end thereof in Bosworth-Field CHAP. XXIV Of the Government in relation to the Parliament THe seasons now in Tract were of short continuance lives passed away more speedily than years and it may seem useless to enquire what is the nature of the Government in such a time whenas the greatest work was to maintain Life and Soul together and when all is done little else is done For though the Title of the House of York was never so clear against that of Lancaster yet it had been so long darkned with a continual â—uccession of Kings of the Red Rose that either by their Merit had gained a Throne in the peoples Hearts or by their Facility had yielded their Throne up to the peoples will as it proved not easie to convince them that liked well their present Lot and were doubtful of change or to make them tender of the right of Edward the Fourth above their own quiet Above Threescore years now had England made trial of the Government of the Lancastrian Princes and thereof about Thirty years experience had they of Henry the Sixth they saw he was a gentle Price On the other side Edward the Fourth newly sprung up out of a Root watered with blood himself also a man for the Field This might well put the minds of the people to a stand what to think of this Man whose Nature and ends are so doubtful and brought nothing to commend him to the good wills of the people but his bare Title which the common sort usually judge of according as they see it prosper more or less Add hereunto that Divine Providence did not so clearly nor suddenly determine his secret purpose concerning this change by any constant success to either part by means whereof the one half of Edward the Fourth's Reign was spent while as yet Henry the
which followed and made way for the King without shame to ask what no King before him suffered ever to enter into conceit I mean a Legislative power to this effect That Proclamations made by the greater part of the King for the time being and his Council whose names hereafter follow with such penalties as by them shall be thought meet shall be of equal force by an Act of Parliament provided it shall not extend to the forfeiture of Estates or Priviledges nor to loss of Life but in cases particularly mentioned in the Law Provided no Proclamation shall cross any Statute or lawful or laudable Custom of this Realm All which at length comes to be demanded by a formal Bill with as ill-favoured a Preface as the matter it self which was much worse e're it was well liked in the House of Commons and when all was done proved a Bare still Whatever it was it passed in manner abovesaid neither much to the desire of the Commons that so much was given nor to the good liking of the King that there was no more For instead of a Legislative power which he grasped at for himself he received it in common with his Council and so becomes engaged neither to alter nor destroy that Brotherhood if he intended to reap any fruit of this Law leaving the point in doubt whether his Gain or Loss was the greater For this Law thus made for this King these Counsellors and these times and occasions can be no Precedent to the future unless to inform Kings that the Parliament hath a power to give more Authority and Prerogative to Kings than they or the Crown have by common Right and to give it with such limitations and qualifications as seemeth good to them And secondly That even Henry the Eighth acknowledged that the Legislative power was not in the Crown nor was the Crown capable thereof otherwise than it was conferred by the Parliament Onely Steven Gardiner might glory in this Atchievement having for the present obtained much of his ends by perswading the King that Forein Princes estranged from him not so much for his departure from the Pope as for some apprehensions they had of his departure from that way of Religion and Worship which they apprehend every Christian ought to maintain And therefore if he meaned to gain better correspondency amongst these Princes he must engage more resolvedly to the Fundamentals of the Worship though he shook off some slighter Ceremonies with the Romish Supremacy for he knew that they were willing enough with the latter though the other could not go down with them Thus did Forein Correspondency float above whenas the Church as then it stood was underneath and gave the tincture to every Wave And it was holden more safe by the Romish party to trust the King thus attempered with the Legislative power in the Church-matters than the rough Parliament whose course steered quite wide from the Roman shore as if they never meant to look that way any more though Cranmer and the chief Officers of State and of the Houshold were by the Law Judges of the matter in fact as well as the King yet in the conclusion the King onely was of the Quorum All this yet further appears in the penalty for by a Proviso it is moderated as to all forfeitures of Life Limb or Estate and in the conclusion extended onely to Fine and Imprisonment unless in some cases mentioned and excepting offences against Proclamations made by the King or his Successors concerning Crimes of Heresie For it is the first Clause of any positive Law that ever intimated any power in the King of such Cognizance and punishment of Heresie Too weak a principle it is to settle a Prerogative in the King and his Successors as Supream Head of the Church thus by a side-wind to carry the Keys of Life and Death at their Girdle and yet a better ground cannot I find for the Martyrdom of divers brave Christians in those times than this touch of a Law glancing by All which passing Sub silentio and the Parliament taking no notice thereof made way for the Statute 38 H. 8. c. 26. formerly mentioned to come more boldly upon the Stage This was one wound to the Legislative power of the Parliament thus to divide the same Another ensues that in its consequences was no less fatal to that power which remained and it was wrought by some Engine that well saw that the Disease then so called grew to be epidemical amongst the more considerable party in the Kingdom that the Lady Jane Seymor now Queen was no friend to the Romanists that she was now with Child which if a Son as it proved to be was like to be Successor in the Throne and be of his Mothers Religion and so undo all as in the issue all came so to pass To prevent this nevertheless they fancy a new conceit that Laws made by English Kings in their minority are less considerately done than being made in riper years And so by that one opinion countenanced a worse which was that the Legislative Power depended more upon the judgement of the King than the debates and results of the Parliament a notion that would down exceeding well with Kings especially with such an all-sufficient Prince as Henry the Eighth conceived himself to be Upon this ground a Law is made to enable such of the Kings Successors by him appointed as shall be under the age of Twenty and four years when Laws by him are made to adnul the same by Letters-patents after such Prince shall attain the said age of Twenty four years Thus the Arms of the Parliament are bound from setling any Reformation let them intend it never so much a Muse is left open for the Romish Religion still to get in when the Season proves more fair The Parliament was now in its minority and gives occasion to the Reader to bewail the infirmities of the excellencie of England A fourth advance of Prerogative concerned the Executive Power in Government of the Church This had formerly much rested in the Prelacy and that upon the chief Praelatissimo at Rome now there is found in England a greater Prelate than he the Pope was already beheaded and his head set upon the Kings shoulders To him it is given to nominate all Bishops and Archbishops within his Dominions by Conge d'eslire and that the party once elected shall swear Fealty and then shall be consecrated by Commission and invested but if upon the Conge d'eslire no Election be certified within Twelve days the King shall by Commission cause his own Clerk to be consecrated and Invested The occasion that first brought in this President was the access of Cranmer to the See at Canterbury for though the Headship had been already by the space of Two years translated from Rome to England yet the course of Episcopizing continued the same as formerly it had been I mean as touching the point of Election For though
they had in bodies aggregate may appear as followeth The Free-men of England were such as either joyned in the War with Harold against the Normans or such as absented themselves from the way of opposition or enmity and were either waiting upon their own affairs or siding with the Normans And questionless all the sadness of the War befel the first sort of the English whose persons and Estates to make the ways of the first Norman William regular and of one piece never fell so low as to come under the Law or rather the Will of Conquest but in their worst condition were in truth within the directory of the Law of forfeiture for Treason against their Soveraign Lord whose claim was by Title as hath been already noted The other sort either did appear to be the Normans friends or for ought appeared so were and so never offending the Law never suffered any penalty but held their persons and possessions still under the patronage of Law as anciently they and their Ancestors had done And that this was the Normans meaning they publish the same to the World in a Fundamental Law whereby is granted That all the Free-men of the whole Kingdom shall have and hold their Lands and Possessions in hereditary right for ever And by this being secured against forfeiture they are further saved from all wrong by the same Law which provideth That they shall hold them well or quietly and in peace free from all unjust Tax and from all Tallage so as nothing shall be exacted nor taken but their free service which by right they are bound to perform This is expounded in the Laws of H. 1. cap. 4. That no Tribute or Tax shall be taken but what was due in the Confessor's time Under the word Tax is understood monetagium commune per civitates or comitatus so as aids and escuage are not included for they are not charged upon Counties and Cities but upon Tenures in Knight-service nor was Dane gelt hereby taken away for that was a Tax in the Confessor's time and granted by Parliament So then the Norman Kings claimed no other right in the Lands and possessions of any of their Subjects than under and by the Law or common right and they conclude the Law with a sicut which I thus English As it is enacted to them or agreed by them and unto them by us given and granted by the Common-council of our whole Kingdom I leave the words to be criticized upon as the Reader shall please being well assured that the most strained sence can reach no further than to make it sound as an Estoppel or Conclusion to the King and his Successors to make any further claim unto the Estates of his Subjects than by Law or Right is warrantable under which notion Conquest never did nor can come as shall more fully be manifested hereafter But the right genius of this Law will also more evidently appear by the practice of those times which even when Justice it self did most importune so tenderly regarded the liberty of mens Estates that no Distress could issue without publick Warrant obtained and upon three Complaints first made and right not done And when Rape and Plunder was in the heat and men might seem to have no more right than they had power to maintain yet even then this Law was refuge sufficient for such as were oppressed and was pleaded in bar against all usurpations and intrusions under pretext of the Conquerour's right whatsoever as by the Case of Edwyn of Sharneburn may appear Secondly the Freemen of England had vote in the making of Laws by which meum and tuum was bounded and maintained as may appear by what hath been already said nor shall I endeavour further therein Thirdly they had an influence upon the judicatory power For first the matter in fact was determined by the votes of the Freemen as the laws of the Conquerour and of Henry the first do sufficiently manifest Secondly they had an influence in the making of the Sheriff who as well as the Bishop was by Election of the people Thirdly they had an influence upon all Judges by setting a penal Law upon them in case of corruption which if not so penal as to take away life was nevertheless penal enough to make an unjust Judge to be a living pattern and example of misery to teach others to beware Two things more must be added though somewhat collateral to this purpose Concerning the right of the Freemen in the common Mint and in their Villains Concerning the Mint that the Saxons having made it as parcel of the demesues of the Kingdom and leaving to the King onely an overseership reserved the controul and chief survey thereof to the Grand Council of the Kingdom who had slated the same in the Confessour's time But after him the Normans changed the current according to their own liking till by Henry the first it was reduced into the ancient course allowing no money but such as was currant in the days of the Confessour whose Laws also with some alterations by the Conquerour with common advice he also established Concerning the Lords right to their Villains it is observable first that liberty of infranchisement was allowed which could never have been had not the Liberty of the Subject been saved Secondly that Infranchisement properly is the work of the people or the body and the Lord was to deliver his villain by his right hand unto the Sheriff in full County-court and pronounce him free from his Service and shall make room for him by free passage and open doors and deliver him free Arms viz. a Lance and a Sword and then he is made a Freeman as I conceive to all intents and purposes Otherwise there might be manumission as if the villain remained in a City Borough walled Town or Castle by a space of a year and a day and no claim made to his service by his Lord he shall be thenceforth free from the service of his Lord for ever and yet this manumission could not conclude any but the Lord and his Heirs or Assignes nor could it enforce the body to allow that for a Member which was none before Thirdly that notwithstanding they allowed the Lords liberty of infranchisement yet would they not allow them free liberty of disposing them as other Chattels nor by the Law of the Conquerour might they sell their Villains out of the Countrey or beyond Sea for the King had right to the mediate service of every Villain though the Lord had the immediate and therefore that Law might hold in force nevertheless the Ordinance that Anselm made that no Lord should sell his Villain they would never allow for a Law nor did it hold in force CHAP. L. A recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned I Call them Norman Laws because they were allowed by them or continued
in force although many of them had their original from the Saxons One God must be worshipped and one faith of Christ maintained throughout the whole Kingdom This is found amongst the Laws of the King William published by Mr. Selden and was for substance in the Saxons time saving that we find it not annexed to the Crown summarily until now so as by this Law Heresie and Idolatry became Crown-pleas And the like may be collected concerning Blasphemy concerning which it is said as of the Servant's killing his Lord that it is impardonable nor could any man offend herein but it endangered his whole estate The trial of these crimes is not found particularly set forth It might possibly be in the meeting of the Clergy and possibly in the County-court of the Torne where the Bishop was present Jura divina edocere Peter-pence Ciricksceat and Tythes must be duly paid These are all Saxon Laws united to the cognizance of the Crown as formerly hath been shewed Only the first William especially provided that in case any man worth Thirty pence in Chattels did pay four pence for his part it should be sufficient both for himself and his Retinue whether Servants or Retainers and defaults in payment of these duties were finable to the King. Invasion upon the right of Sanctuary fined This I note not so much in relation to any such Law amongst the Saxons as to the future custom which now began to alter according to the increase or wane of the Moon I do not find this misdemeanour to be formerly so much taken to heart by the Crown nor possibly would it have been at this time but that the King must protect the Church if he mean to be protected by it and it was taken kindly by the Church-men till they found they were able enough to defend their own right by themselves Amongst all the rest of Church-rights this one especially is confirmed viz. That any Delinquent shall have liberty of Sanctuary to enjoy both Life and Member notwithstanding any Law to the contrary This priviledge was claimed by the Canons but it must be granted by the Temporal power or else it could not be had and though it be true that Kings formerly did by their Charters of foundation grant such privileges in particular yet could not such Grants create such immunities contrary unto or notwithstanding any publick Law of the Kingdom and therefore the Monasteries had their foundations confirmed by Parliament or general assembly of wise men if the first foundation was not laid thereon Working upon the Feast-days punished by Fine Before this time no days for Solemn Worship of God were acknowledged by the Law of the Kingdom but the Lord's days By this all days celebrated or instituted by the Church for that purpose are defended by the civil power and breach of the holy observation of these days made enquirable and punished amongst other pleas of the Crown Breach of the Peace Bloodshed and Manslaughter punished by Fine This was the ancient Law of the Saxons and was continued without alteration till about Alfred's time whose zeal against blood caused Murther to be punished with death but the Danes bringing in a moderation if it may rightly be so called are now seconded by their kindred the Normans who will not admit of punishment by death partly because being a warlike people bloodshed might seem to rank itself under the Regiment of valour and partly because they owed much to that Title for the possession of all that they had gotten in England And to prevent scandal entring upon the rear opinion stept in that a miserable life was more penal than death and therefore in crimes of the deepest die they came to fine and loss of Member and which course prevailed most either to stop or enlarge the course of that sin was left to the disposition of such as intended to make trial But in matters of less malignancy the purss rather smarted than the body wherein they proceeded so far as to punishment of death by violence yet was not the fine to be measured by the judgment of the mercy or rigour of any person but only of the Law itself which set down in certainty both the nature and quantity of the fine and left that memorial upon record of a good mind at least to an equitable and just Government In all these cases of breach of peace the King's Court becomes possessed of the right of cognizance and the peace is now called the King's peace not so much because that it is left only to his providential care to maintain as because the fines for most of those crimes pertained to the King for otherwise there is a sort of crimes that are contra pacem vicecomitis as will be more cleared hereafter I shall conclude this subject with these three Observations First that the Laws in those ancient times of the Normans were so general as they then made no difference between places or persons but whether the peace was broken upon holy or common ground or upon a Lay-man or one in orders the Lay-power seized upon all The second is the care they had for apprehending of the offenders in this kind If the party slain were a Norman or Frenchman the Lord of the Manslayer was charged to have him forthcoming within a certain time or pay the Kings Fine of 46 Marks so long as he had wherewith to satisfie and for what remained the whole Hundred was charged But if the party slain were of any other people the Hundred was immediately charged with the Manslayer and must bring him to answer within a certain time or pay the Kings fine The third and last is the care they had to prevent breach of peace for the future first in setling of night-watches by all Cities Burroughs Castles and Hundreds in such manner as the Sheriff or chief Officers by Common-council shall advise for the best safety of the Kingdom Secondly in forbidding entertainment of unknown persons above three days without surety for their good abearance or becoming their pledge for the publick safety nor to let any persons pass away without testimony under the Ministers and Neighbours hand of their good carriage A Man committing Adultery with a Married Woman shall forfeit to his Lord the price of his life This made the crime enquirable at the common-Law as an offence contra pacem Domini but afterward it was sinable to the King and enquirable amongst the pleas of the Crown by the Law of Henry the first Force upon a Woman to the intent to Ravish her is finable but if a Rape be committed it shall be punished with loss of Member The crime and offences against this Commandment were always punished in the Temporal Courts by Fine at the least and are still in the Normans time prosecuted in the same way notwithstanding the growing authority of